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Article
Publication date: 7 September 2012

Larry A. DiMatteo

This article seeks to take a critical look at the proposed Common European Sales Law (CESL).

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Abstract

Purpose

This article seeks to take a critical look at the proposed Common European Sales Law (CESL).

Design/methodology/approach

The article looks at the rationales given to support the enactment of the CESL. The approach is critical in nature seeking to vet the plausibility of the rationales given for a new regulation The article also takes a critical look at the CESL's structure and trilogy of coverage – sale of goods, supply of digital content, and supply of services.

Findings

The article exposes some of the shortcomings of the CESL and the dangers to substantive private law of crafting a regulation based on political feasibility.

Research limitations/implications

The CESL as proposed offers some innovative ideas in areas of the bifurcation of businesses into large and small to medium‐sized enterprises (SMEs), as well as rules covering digital content and the supply of trade‐related services. In the end, the analysis suggests a more thorough review is needed to better understand the CESL's interrelationship with the Convention on Contracts for the International Sales Law (CISG) and EU consumer protection law.

Practical implications

Further analysis is needed and unanswered questions need to be answered prior to the enactment of the CESL into law. A practical first step would to begin with a more targeted law focused on internet trading and licensing contracts.

Originality/value

This article questions the rationales given for the enactment of an ambitious new regulation covering disparate areas of sale of goods, supplying (licensing) of digital content, trade‐related services, and consumer protection. It further questions the rationality and practicality of the creation of the designation of SMEs as types of businesses in need of extra protections not currently provided by contract law's general policing doctrines.

Article
Publication date: 7 September 2012

Ulrich Magnus

The purpose of this article is to compare the methods of interpretation and gap filling in the United Nations Sales Convention (CISG) and in the Draft Common European Sales Law

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Abstract

Purpose

The purpose of this article is to compare the methods of interpretation and gap filling in the United Nations Sales Convention (CISG) and in the Draft Common European Sales Law (CESL). In particular, it aims to examine whether the established interpretation and gap filling method of the CISG can and should be used for the CESL.

Design/methodology/approach

The article looks at the method by which international case law and doctrine interpret the CISG and fill its gaps. The article compares this method with the method that is provided for in the CESL instrument but has to be implemented.

Findings

It is suggested that despite its nature as European community law, CESL should be interpreted in a broad international way since it does not only cover internal EU sales, but also transactions involving parties from outside the EU. For this reason its interpretation and gap filling should follow the method of the CISG so as to interpret similar provisions in a similar way in order to harmonize law within and outside the EU.

Research limitations/implications

Both the CISG and CESL intend to unify legal traditions or different legal systems; the CISG tries to harmonize globally what CESL tries to harmonize regionally. It is important that these two instruments complement one another by the avoidance of divergent interpretations of similar provisions. It would helpful for further research to assess whether and how two decades of experience with the CISG can be used in the interpretation and application of CESL.

Practical implications

CESL's interpretation provision, if it is enacted, is unlikely to change from the current version. The way CESL is interpreted and how its gaps filled will determine its practical significance as a viable opt‐in national law. It is therefore necessary to develop in advance the right interpretive methodology if CESL is to become a meaningful alternative instrument.

Originality/value

The article suggests that the CESL should not be interpreted in the traditional way European community law is interpreted, but, instead, be interpreted under a broad international perspective. It also advances the idea of interconventional interpretation by which the CISG would guide the interpretation of similar provisions found in CESL.

Article
Publication date: 7 September 2012

Rafael Illescas Ortiz and Pilar Perales Viscasillas

This article aims to take a critical look at the proposed Common European Sales Law (CESL) and its field of application.

Abstract

Purpose

This article aims to take a critical look at the proposed Common European Sales Law (CESL) and its field of application.

Design/methodology/approach

The article provides a comparative analysis of the scope of application of CESL with that of the Convention on Contracts for the International Sales of Goods (CISG). The approach is critical in nature in that it questions the regulation of business‐to‐business (B2B) transactions under CESL. It also takes a critical look at the CESL and its coverage of three areas of contracting – sale of goods, supply of digital content, and supply of services.

Findings

The article exposes some of the shortcomings of the CESL in relation to its field of application.

Research limitations/implications

The CESL as proposed offers an optional regulation that complicates the law of transborder sales within the European Union (EU) and between EU member states and non‐EU states. The article recommends that CESL not extend its coverage to B2B transactions and leave transborder commercial transactions to the CISG. The article also suggests other changes to improve the CESL.

Practical implications

Further analysis is needed and more defined rules should be considered before CESL is enacted into law.

Originality/value

This article questions the wide scope of application of CESL. It further questions the rationality and practicality of the CESL's coverage of B2B transactions.

Article
Publication date: 7 September 2012

Christian Twigg‐Flesner

This paper aims to explore the way in which informational asymmetries between the two parties to a contract for the sale of goods are dealt with under two legal regimes designed…

Abstract

Purpose

This paper aims to explore the way in which informational asymmetries between the two parties to a contract for the sale of goods are dealt with under two legal regimes designed for transnational sales contracts: the UN Convention on the International Sale of Goods (CISG) and the proposed Common European Sales Law (CESL).

Design/methodology/approach

Having considered the different types of informational asymmetry that can exist in a contract of sale, the paper undertakes a doctrinal legal analysis of the relevant provisions first in the CESL and then the CISG to identify what, if anything, has been done to deal with informational asymmetries. The paper primarily exposes and analyses these rules and compares the approaches taken under both legal regimes.

Findings

The CESL has a more detailed set of rules which address informational asymmetries. This might be because the genesis and context of the CESL (being limited to the EU) might make it easier to agree on more extensive rules. However, the CESL has not yet been adopted.

Practical implications

A seller in a contract of sale governed by CESL will be subject to more detailed (and onerous) requirements when it comes to the disclosure of information.

Originality/value

This is a first attempt to compare the treatment of informational asymmetries under the CISG and CESL, and will be of interest to scholars of both transnational and EU private law.

Content available
Article
Publication date: 7 September 2012

Larry A. DiMatteo

375

Abstract

Details

Journal of International Trade Law and Policy, vol. 11 no. 3
Type: Research Article
ISSN: 1477-0024

Article
Publication date: 7 September 2012

Fryderyk Zoll

The purpose of this article is to investigate the role that the principle of pacta sunt servanda plays in consumer contracts under the Common European Sales Law (CESL).

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Abstract

Purpose

The purpose of this article is to investigate the role that the principle of pacta sunt servanda plays in consumer contracts under the Common European Sales Law (CESL).

Design/methodology/approach

The new proposal for the CESL resembles quite closely other global and European instruments and collections of rules on contracts, such as the CISG, PECL, and DCFR. At a closer look, the concept of contract, and in particular the consumer contract, differences between the CESL and its predecessors becomes readily apparent. This article will point out these differences and thereby analyse the role of the pacta sunt servanda principle in consumer contracts.

Findings

The question must be answered whether the consumer protection provisions that weaken the bindingness of contracts will discourage traders from opting into CESL? The Article also shows the inconsistencies in the CESL in business‐to‐business (B2B) contracts in the areas relating to mistake and lack of conformity.

Originality/value

The article poses a question which is of such relevance that it should be more comprehensively discussed by European legislators before the CESL is adopted as an EU regulation.

Book part
Publication date: 7 May 2015

Maren Heidemann

In this chapter, the author offers a horizontal comparison of interpretation standards contained in international legal instruments of different origin. These legal instruments…

Abstract

In this chapter, the author offers a horizontal comparison of interpretation standards contained in international legal instruments of different origin. These legal instruments range from international treaties to model laws. They also originate from different law makers such as the United Nations or individual states as well as trade or academic organisations, mainly regulating civil and commercial matters. The author argues that this comparison can provide the basis for the development of a uniform standard in the application of such law, which is often referred to as uniform law because it provides a single source of law to regulate a multitude of situations spanning across national boundaries. The main point of reference is the 1969 Vienna Convention on the Law of Treaties, also known as the VCLT. This UN treaty specifically provides a general interpretation standard. From there newer standards occurring in subsequent uniform laws can be integrated using the lex specialis doctrine. This, in turn, provides opportunities for comprehensive usable methods to be developed for uniform law both in a public and private law settings. These then facilitate transparency, fairness and reasonableness. The correct identification of object and purposes of any given instrument is crucial for the successful interpretation of its content. It is this point that needs further research, and this chapter offers a starting point by providing some detailed examples from a range of uniform laws of varying nature including international sales laws, arbitration laws and Double Taxation Conventions.

Details

Comparative Sciences: Interdisciplinary Approaches
Type: Book
ISBN: 978-1-78350-456-5

Keywords

Content available
Article
Publication date: 11 March 2014

191
Article
Publication date: 7 September 2012

Hector L. MacQueen

The purpose of this paper is to present a critical analysis of the concept of “change of circumstances” as a justification for judicial revision of contracts.

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Abstract

Purpose

The purpose of this paper is to present a critical analysis of the concept of “change of circumstances” as a justification for judicial revision of contracts.

Design/methodology/approach

The study analyses international legal texts on the subject in the light of a decision of the Inner House of the Court of Session in Scotland, Lloyds TSB Foundation for Scotland v. Lloyds Banking Group plc [2011] CSIH 87 (currently subject to appeal to the UK Supreme Court).

Findings

Whatever the merits of a change of circumstances doctrine, the Lloyds case does not provide a good example for its application.

Research limitations/implications

The scope of a change of circumstances doctrine should be tested by further comparative study.

Originality/value

This is the first consideration of the Lloyds case in an international and comparative context.

Details

Journal of International Trade Law and Policy, vol. 11 no. 3
Type: Research Article
ISSN: 1477-0024

Keywords

Article
Publication date: 11 September 2017

Byung Mun Lee

The purpose of this paper is to describe and analyze the rules on the formation of contracts under Korean law and the Contracts for the International Sale of Goods (CISG) in a…

Abstract

Purpose

The purpose of this paper is to describe and analyze the rules on the formation of contracts under Korean law and the Contracts for the International Sale of Goods (CISG) in a comparative way and introduce the relevant proposed rules under the Amendment Draft of the Korean Civil Code (KCC). In addition, it attempts to compare and evaluate them in light of the discipline of comparative law.

Design/methodology/approach

In order to achieve the purposes of the study, it executes a comparative study of the rules as to the formation of contracts of the CISG, Korean law and the Amendment Draft of the KCC. The basic question for this comparative study is placed on whether a solution from one jurisdiction is more logical than the others and to what extent each jurisdiction has responded to protect the reasonable expectations of the parties in the rules as to the formation of contracts.

Findings

The comparative study finds that most of the rules under the CISG are quite plausible and logical and they are more or less well reflected in the proposals advanced by the KCC amendment committee. On the other hand, the other rules under the CISG which have brought criticisms in terms of their complexity and inconsistent case law invite us their revision or consistent interpretation. The drawbacks of the CISG have also been well responded in the Amendment Draft of the KCC. Nevertheless, it is quite unfortunate that the Amendment Draft of the KCC still has a rule that regards any purported performance with non-material alteration of the terms of an offer as an acceptance.

Originality/value

This study may provide legal and practical advice to both the seller and the buyer when they enter into a contract for international sales of goods. In addition, it may render us an insight into newly developed or developing rules in this area and show us how they interact with each other. Furthermore, it may be particularly useful in Korea where there is an ongoing discussion for revision of the KCC.

Details

Journal of Korea Trade, vol. 21 no. 3
Type: Research Article
ISSN: 1229-828X

Keywords

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